Case Note & Summary
The case involves a Civil Revision Application filed by the original defendant, Chandrakant Bhaurao Waghmare, challenging an order dated 29.04.2019 passed by the 11th Joint Civil Judge, Junior Division, Aurangabad, rejecting his application (Exh. 71) under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC). The application sought rejection of the plaint in Regular Civil Suit No. 1724/2012 filed by the respondents (original plaintiffs) for partition, declaration, possession, and perpetual injunction. The defendant contended that the plaintiffs had earlier filed a suit (R.C.S. No. 269/2009) on the same cause of action, which was dismissed for non-prosecution on 28.06.2011. He argued that the subsequent suit was barred by law under Order IX Rule 9 CPC, which prohibits a fresh suit on the same cause of action after dismissal for default. The trial court rejected the application, holding that the earlier dismissal was not on merits and did not bar the subsequent suit. The High Court, after hearing both sides, upheld the trial court's order. The court noted that the earlier suit was dismissed for default, not on merits, and that Order IX Rule 9 CPC only bars a fresh suit if the earlier dismissal was under Order IX Rule 8 and the plaintiff fails to show sufficient cause. Since the plaint in the subsequent suit did not on its face disclose that the suit was barred by law, the application under Order VII Rule 11(d) was rightly rejected. The court also observed that the defendant's remedy was to raise the issue of res judicata or bar under Order IX Rule 9 at the trial, not through rejection of plaint at the threshold. The revision application was dismissed, and the trial court was directed to proceed with the suit expeditiously.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Bar under Order IX Rule 9 CPC - The applicant-defendant sought rejection of plaint in a partition suit on the ground that the plaintiffs had earlier filed a suit on the same cause of action which was dismissed for default. The trial court rejected the application. The High Court held that dismissal of a suit for default does not operate as a bar under Order IX Rule 9 CPC for filing a fresh suit on the same cause of action, as the earlier dismissal was not on merits. The plaint cannot be rejected under Order VII Rule 11(d) CPC as the suit is not barred by law. (Paras 1-10) B) Civil Procedure - Dismissal for Default - Order IX Rule 9 CPC - The court clarified that Order IX Rule 9 CPC bars a fresh suit only when the earlier suit was dismissed under Order IX Rule 8 (for default of plaintiff's appearance) and the plaintiff fails to show sufficient cause for non-appearance. However, the bar does not apply if the earlier dismissal was not under Order IX Rule 8 or if the plaintiff had not been heard on merits. In the present case, the earlier suit was dismissed for non-prosecution, which is akin to dismissal under Order IX Rule 8, but the court found that the plaintiffs had not been given an opportunity to be heard on the merits of the bar. The court emphasized that the power under Order VII Rule 11(d) must be exercised only when the plaint on its face shows that the suit is barred by law. (Paras 5-10)
Issue of Consideration
Whether a subsequent suit on the same cause of action is barred under Order IX Rule 9 of the CPC when the earlier suit was dismissed for default, and whether the plaint in the subsequent suit is liable to be rejected under Order VII Rule 11(d) CPC.
Final Decision
The Civil Revision Application is dismissed. The order dated 29.04.2019 passed by the 11th Jt. Civil Judge J.D., Aurangabad, rejecting application Exh. 71, is confirmed. The trial court is directed to proceed with the suit expeditiously.
Law Points
- Order IX Rule 9 CPC
- Order VII Rule 11(d) CPC
- Bar on fresh suit on same cause of action
- Dismissal for default
- Rejection of plaint
